Wednesday, September 22, 2010

More Scalia "Originalist" Hackery

Ben's old law school buddy Ian Millhiser reports on a special new piece of insanity from "Justice" Antonin Scalia:
Scalia also said he doesn't believe the Constitution bans sex discrimination.

The 14th Amendment, enacted after the Civil War in 1868, guarantees due process and equal protection and in recent years has been interpreted by courts to prohibit sex discrimination as well as racial discrimination.

But Scalia said he believes the amendment doesn't apply to discrimination against women because that use of the measure was not intended in 1868.
Hmm. Let's check the 14th Amendment:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Nope, nothing about "this doesn't apply to women" in there. I call hackery.

To his credit, Scalia said this in the context of saying that "a lot of stupid stuff is constitutional," so we can't say he's pro-sex discrimination. Rather, I think he's using his "originalism" doctrine - which says that the Constitution's meaning should be filtered through the opinions of those who approved it - to basically make stuff up in order to avoid having to address the 14th Amendment implications of a case that will likely be coming before him soon: Perry v. Schwarzenegger, the gay marriage case.

I've written this a million times on this blog in the past few months, but you can't make the Constitution say shit it doesn't say. If the people writing the 14th Amendment wanted to exclude women, they should have written that in there. They didn't. We have to follow the plain meaning of the Amendment as written.

Not that Scalia's the only hack who ignores the full implications of equal protection. It seems like a fairly sizable chunk of the legal profession does as well. The rational basis test is basically an excuse used by jurists to avoid having to address the fact that "equal protection" and "due process" might actually mean "equal protection" and "due process." I'm looking at the text I just quoted, and there's nothing in there that says "this shit doesn't apply if the government can come up with a good reason for why it shouldn't apply."

But Scalia's hackery is more reprehensible. At least the "rational basis" hackery is something of a neutral legal tradition and occasionally works to protect people's due process/equal protection rights. Scalia can basically interpret the Constitution however he wants by imagining that he's in the head of some dead guy 150 years ago. This reasoning has its place, especially when there's some ambiguity in the wording of the document, but one can't directly contradict the plain meaning of the text by invoking the imagined opinions of the text's writers. That's a right that Scalia is claiming for himself here, and that's why he's a genuine problem on the Court.

Speaking of hacks:


Ben said...

Glad to see my old buddy Ian - who requires neither food nor oxygen because he eats and breaths politics - is doing what he does best....and getting attention for it.

The disagreement between you and Scalia here is the classic dispute between "Plain Meaning" and "Legislative Intent." When interpreting a law - be it legislation passed by Congress, a passage of the constitution, or simply a boring ol' federal regulation - do you start from the plain meaning of the text or do you try to capture what the creator of the law was trying to accomplish? There's case law all over the place on this, but when it comes to legislation and regulations, the general consensus is that judges should defer to the plain meaning of the text unless it is ambiguous. If there is ambiguity, only then do you look behind the text to try and discover the legislative intent. The reasoning behind this interpretive approach is that the law-makers chose certain words for a reason and those words are usually the best expression of their "intent." Attempts to discern "intent" have the danger of inserting the judge's own opinions and biases. Scalia - more than most judges - is skeptical of attempts to discern "legislative intent." Which makes it all the more ironic that he throws all that out the window with his "originalist" interpretation of the 14th Amendment.

Now, about rational defense of that doctrine, the law makes distinctions all the time and clearly not all of them are banned by the 14th amendment. For instance - to take an obvious example, the law allows people who have been convicted of crimes to be put in jail and not people who have not been convicted of crimes. (Putting aside certain insane claims made by current and recent Presidents re: National Security.) Nobody thinks the 14th Amendment was meant to prohibit such distinctions. Another example, welfare payments only go to people below a certain income level. Does the 14th Amendment's guarantee of equal protection mean that I should get welfare payments too or else it's discrimination? So, the courts have looked at certain classifications (i.e. race and, despite what Scalia says, sex) and subjected laws making distinctions based on such classifications to strict scrutiny. Where there is strict scrutiny, the law is almost always overturned. But other distinctions don't merit such scrutiny and thus they get rational basis review. It's as reasonable a basis as any for interpreting the 14th Amendment in a way that doesn't make the very act of legislation impossible.

Jeff said...

Yeah, I guess my problem with rational basis is that it seems too easy to beat. I mean, I was downright shocked when Prop 8 and DADT failed it, because I feel like any lawyer with the IQ of an iguana could defend 99% of laws that violate equal protection with a rational basis claim. Seems to me the default should be to strict scrutiny (or whatever the strictest standard is) unless certain other conditions apply, rather than the other way around.